Criminal Procedure Bill 2009: Committee Stage (Resumed).

Government amendment No. 49:
In page 28, after section 32, to insert the following new section:
"35.—(1) This section applies where property that is to be entered in evidence in a criminal trial is to be—
(a) returned to its owner, or
(b) disposed of before the trial begins.
(2) Where the prosecution proposes to dispose of property that is to be entered in evidence or return it to its owner before the scheduled date of the start of the trial, the prosecution shall serve a notice under this section (the "prosecution notice") on the accused at any time that is at least 23 days prior to that date.
(3) The prosecution notice shall contain a description of the property in sufficient detail to identify it and a statement as to the relevance of the property to the proceedings, together with—
(a) one or more photographs of the property, and
(b) any report that the prosecution proposes to enter in evidence arising from the analysis of the property, including analysis of any materials found in or on the property (the “prosecution report of evidence”).
(4) Not later than 7 days after service of the prosecution notice undersubsection (2), the defence shall serve on the prosecution a notice in writing (the “defence notice”) that indicates one of the following:
(a) that the defence accepts the prosecution notice and agrees to the return or disposal of the property;
(b) that the defence wishes to provide to the prosecution a report that conforms with subsection (3) (the “defence report of evidence”);
(c) that the defence requires the property to be available as an exhibit at the trial.
(5) Where the defence notice served undersubsection (4) is a notice mentioned in paragraph (b) of that subsection, then, notwithstanding section 34, the defence shall, not later than 7 days after service of that notice, serve the defence report of evidence on the prosecution.
(6) Where a defence report of evidence is served on the prosecution undersubsection (5), the prosecution shall, not later than 3 days prior to the scheduled date of the start of the trial, provide to the defence and the court a notice stating whether it accepts or rejects that notice (the “prosecution notice of reply”).
(7) If the defence notice undersubsection (4) is made under paragraph (a) of that subsection or is made under paragraph (b) of that subsection and a defence report of evidence is served under subsection (5) and accepted under subsection (6), then—
(a) a member of the Garda Síochána not below the rank of inspector shall, on receipt by him or her of a copy of the notice referred to in subsection (4) or (6), cause the property to be returned or disposed of, as the case may be,
(b) the member referred to in paragraph (a) shall keep a written record of the return or disposal of the property, and
(c) where the property is returned to its owner, the owner shall acknowledge in writing the receipt of the property.
(8) The following rules apply to admissibility of evidence:
(a) where subsection (4)(a) applies, the prosecution report of evidence is proof of the facts stated therein, unless the contrary is shown;
(b) where subsection (4)(b) applies and a defence report of evidence is served on the prosecution under subsection (5) and accepted under subsection (6), the defence report of evidence is proof of the facts stated therein, unless the contrary is shown;
(c) where subsection (4)(c) applies, the property may be admitted as evidence in any trial in which the property is otherwise admissible;
(d) in any other case, a report prepared under subsection (3) or (5) may be admitted as evidence in any trial in which the property is otherwise admissible.
(9) Any person who prepares information contained in a report undersubsection (3) or (5) may be called to give evidence in relation to all or any part of the report, and may be cross-examined on that evidence.”.

This amendment addresses a difficult issue, namely, the requirement of the Garda not only to seek out but also to retain evidence. While being mindful of the inconvenience and loss being suffered by at least some owners of the property involved, I do not claim that this amendment will address all the concerns in this issue but it will bring a measure of relief as well as a degree of certainty to the law. There is considerable jurisprudence on this issue from the Supreme Court. In its judgment in the 2001 case of Braddish v. DPP, Mr. Justice Hardiman stated:

It is well established that evidence relevant to guilt or innocence must, so far as is necessary and practical, be kept until the conclusion of the trial. This principle also applies to the preservation of articles that give rise to a reasonable possibility of securing relevant evidence.

In her judgment in a more recent Supreme Court case, Savagev. DPP, Mrs. Justice Denham outlined a best practice suggestion for the Garda to follow when deciding on whether to return or retain the property. This amendment is an attempt to transpose this best practice suggestion into statute, or at least aspects of it.

The approach taken in the amendment is based on section 21 of the Criminal Justice Act 1984, as amended by the 1999 Act. Section 21 establishes a procedure for proof by written statement. The current proposal develops that procedure. It provides a mechanism whereby exhibits may be presented by way of a written statement which contains all relevant analysis to the satisfaction of both parties. The procedure entails the prosecution, at its discretion, presenting a statement or report to the defence. The defence then has the opportunity to agree to or accept the report presented to it by the prosecution, in which case the property is returned or disposed of. The defence may commission its own report, or may require that the item be retained or presented at trial. Although it is a limited procedure, the arrangement refers to the prosecution making its approach to the defence at least 23 days prior to the scheduled start of the trial. The Police Property Act 1897 is available to deal with claims for the return of property after the conclusion of proceedings. Therefore, I recommend this amendment to the Seanad.

I am very conscious that there has been a long body of case law on the issue of presentation of evidence, and I declare an interest as I acted in one case that went to the High Court on this. I welcome the attempt to put certainty in the law, but this may be difficult to operate in practice.

I wish to make suggestions to improve the procedure outlined by the Minister in the new section 35. The time of seven days outlined in the new section 35(4) for the defence to serve this notice in writing on the prosecution, indicating what they propose to do with the property, is simply too short. I do not think it will work in practice. The prosecution can serve the prosecution notice about the property at any time at least 23 days prior to the start of the trial. That could occur right at the beginning of the criminal proceedings. In my experience, this arises where somebody reports a crime to the Garda Síochána, gardaí investigate and find stolen property, they arrest an accused and the owner then seeks the return of his or her property. This might happen at a very early date, possibly even prior to the accused's first appearance before the District Court if that person is on bail. It may be that the accused will not even have instructed a solicitor or been granted legal aid. Where the owner is seeking the return of the goods in that sort of case and the gardaí wish to dispose of the property having taken their photographs, they can serve the prosecution notice on the accused because that is allowed in the new section 35(2), but the defence — just the accused person at this stage — will only have seven days to respond.

The new section 35(5) provides that the defence shall, not later than seven days after service of that notice, serve the defence report of evidence on the prosecution. That seems to be too tight to be workable in a situation where an accused person may not have been assigned legal aid. It would be better to have longer time limits in those particular subsections. I do not want to overstate this and I can table amendments on Report Stage. However, I have been involved in cases like this and I know in practice that it may be very difficult for the defence to comply with this. I do not see a proviso saying that all this could be done over a longer period. The real risk is that the gardaí involved will dispose of the property if they have not heard from the defence. We then have the whole Braddishv. DPP and Dunne v. DPP scenario all over again where the defence may apply to the courts claiming that the Garda Síochána should have retained the property. I just seek to make the provision more workable.

We can look at the dates for which the defence must make a response. There is an onus on the prosecution to stick to the 23-day notice, which is stringent. We will look at it on Report Stage.

I do not think the 23 days is stringent. The prosecution must do it at least 23 days before the trial, but at any point in the months preceding the trial. It is a tight onus on the defence or the defence solicitors who are increasingly being given these time limits for the disclosure of evidence. In that context we need to look at extending the period for the service of the defence notices.

Equally, we do not want it to be used as an opportunity to string out trials needlessly.

Certainly, but there is a balance and I do not think it is being struck here.

Amendment agreed to.
Government amendment No. 50:
In page 28, after section 32, to insert the following new section:
Miscellaneous amendments
36.—The Act of 1967 is amended—
(a) in section 4, by the substitution in subsection (2), of “instituted or continued except by the Attorney General” for “instituted or continued except by, or on behalf or with the consent of, the Attorney General”, and
(b) in section 4B, by the substitution of the following subsection for subsection (1):
"(1) (a) Subject to subsection (3), the prosecutor shall cause the documents specified in paragraph (b) to be served on the accused or his or her solicitor (if any) not later than 42 days from the date on which—
(i) the accused, on being informed by the District Court of his or her right to be tried by a jury, objects to being tried summarily or the prosecutor informs the court that he or she does not consent to the person being tried summarily for the offence concerned or,
(ii) in the case of an offence in respect of which the prosecutor may elect to prosecute either summarily or on indictment, the prosecutor elects to try the offence on indictment, or
(iii) the District Court determines that the facts alleged do not constitute a minor offence and are not fit to be tried summarily.
(b) The documents referred to in paragraph (a) are:
(i) a statement of the charges against the accused;
(ii) a copy of any sworn information in writing upon which the proceedings were initiated;
(iii) a list of the witnesses the prosecutor proposes to call at the trial;
(iv) a statement of the evidence that is expected to be given by each of them;
(v) a copy of any document containing information which it is proposed to give in evidence by virtue of Part II of the Criminal Evidence Act 1992;
(vi) where appropriate, a copy of a certificate under section 6(1) of that Act;
(vii) a list of the exhibits (if any).".".
Amendment agreed to.
Government amendment No. 51:
In page 28, after section 32, to insert the following new section:
"37.—The First Schedule to the Criminal Justice Act 1951 is amended by the insertion of the following reference:
"26. The offence at common law of breach of the peace.".".

This amendment amends the Schedule to the Criminal Justice Act 1951 by inserting a new paragraph that refers to the common law offence of breach of the peace. The Schedule to the 1951 Act lists offences which may be tried either as summary or indictable offences. Section 2 of the 1951 Act sets out the procedure on whether to proceed on indictment or by way of a summary case. The decision is one for the Director of Public Prosecutions or the District Court when it considers that the offence in question does not fall within its jurisdiction, or for the accused who may elect for trial on indictment.

In the 2006 case of Thorpev. DPP, a case stated from the District Court to the High Court, the status of the offence of breach of the peace was examined. The High Court confirmed that it was an offence known to law, although not having a statutory basis, and ruled that the offence could be prosecuted as a summary offence. Having regard to its origins, this ruling effectively classified it as an either-way offence. Nevertheless, doubts remain about the law on this offence. It has its origins as a common law misdemeanour and, as such, was regarded as an indictable offence. Despite that, the offence has been tried summarily. Although the High Court decision clarifies the law for the moment, a different view might be taken in another case or by the Supreme Court. There is no statutory basis for regarding an offence as an either-way offence. The solution I propose clarifies the matter and provides a statutory basis for treating it as an either-way offence to be tried either on a summary basis or on indictment depending on the circumstances of the case.

Amendment agreed to.
Government amendment No. 52:
In page 30, after line 40, to insert the following:
"Air navigation offences
21. An offence under section 11 of the Air Navigation and Transport Act 1973 (unlawful seizure of aircraft).
22. An offence under section 3(1) of the Air Navigation and Transport Act 1975 (unlawful acts against the safety of navigation).
Maritime security offences
23. An offence under section 2(1) of the Maritime Security Act 2004.".

The purpose of this amendment is to add three offences of a terrorist nature to the Schedule. The Schedule lists the offences in respect of which the Director of Public Prosecutions may seek to quash an acquittal and seek a retrial on the basis of new and compelling evidence. The threshold for the inclusion of offences in the Schedule is that a maximum sentence of life imprisonment applies on conviction with the exception of the offences under section 7 and section 8 of the International Criminal Court Act 2006 — genocide, crimes against humanity, war crimes and ancillary crimes. In some limited circumstances, a person convicted of an offence under section 7 or section 8 is liable to imprisonment for a term not exceeding 30 years rather than life imprisonment. The three offences I propose to add to the Schedule attract maximum sentences of life imprisonment. I believe their inclusion is appropriate.

Amendment agreed to.
Schedule, as amended, agreed to.
Government amendment No. 53:
In page 5, to delete lines 25 to 29, and substitute the following:

The amendment makes the necessary alterations to the Long Title to reflect the amendments introduced.

Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendments.

When is it proposed to take Report Stage?

Next Tuesday, subject to the agreement of the Whips.

Report Stage ordered for Tuesday, 8 December 2009.